For many people, living with genital herpes generates not just episodic physical discomfort but recurrent emotional distress, centred on concerns about how to live and love safely without passing infection to others. This article considers the evidence on herpes transmission, levels of sexual risk, when the law has intervened and to what extent health professionals should advise with respect to these issues. It proposes a mechanism by which moral philosophy might provide a rational basis on which to counsel concerning sexual behaviour.
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Genital herpes is a condition caused by infection with the Herpes simplex virus (HSV). The infection is sexually transmitted and has the potential to cause a recurrent, painful, blistering rash in the genital area and significant physical and psychological distress in sufferers for many years. Alternatively, it may provoke a single, trivial rash which may go entirely unnoticed, or have no external effect at all, but generally taking up life-long residence in the sacral ganglia, bundles of nerve cells within the pelvis. The infection may be caused by HSV type 1 or type 2 but globally the majority of cases are caused by type 1.1 Neonatal infection has a high mortality and, in addition, genital herpes is associated with an increased risk of HIV acquisition by two to threefold, with HIV transmission on a per-sexual act basis increased by up to fivefold.2 ,3 The lowest prevalence is in western Europe affecting around 18% of women and 13% of men, and the highest in sub-Saharan Africa with 70% of women and 55% of men.4–8 Around 80% of those affected are unaware, but the majority can be taught to recognise symptoms.9 Although those with a symptomatic presentation may never have another episode, there is a 60% chance that those with HSV1 will have a further episode within the next 12 months with a median time lag of 6 months. Those with a symptomatic presentation of HSV2 do statistically less well with an 80%–90% chance of recurrence within the next year, and a median of four recurrences during this time, having to wait a median of only 2 months until the second episode and recurrences occurring four to six times more frequently than with type 1.10 ,11
Yet, for many people with genital herpes, the real suffering is not the reality (or simply the threat) of recurrent painful blistering in the genital area, but the awareness that they may pass the infection on, even when they have no symptoms… it is the perception that they have been transformed into a sexual leper—that there is a risk that they might impose a similar experience on others in any future sexual liaison. This change of one's sexual identity into that of a potential agent of harm appears to echo themes from the fall in the garden of Eden (it is oddly coincidental that snakes are studied in the science of herpetology, from the Greek herpein ‘to creep’), to the sexual subtext of vampire fantasies, to present day paranoias concerning intentional HIV transmission. The emotional ramifications of this are potentially great. A qualitative analysis of around 2000 questions posed in a herpes chat-room online over 2 years revealed that the commonest single anxiety expressed was the risk of transmission.12 The authors note that, ‘the most difficult topic is the psycho-social impact surrounding genital herpes’. As a doctor conveying bad news there is a temptation to avoid compounding the hurt of a herpes diagnosis with the additional concern of transmission. Arguably, worries about avoiding harm to others are not primarily medical questions but actually moral ones. However, these are clearly questions that patients want answered.
Certainly, medical knowledge concerning the fact that a person is shedding virus from the first tingling of prodromal dysaesthesia to the healing of the last scab confirms that one is infectious throughout this time and informs the decision concerning whether one ought to be sexually active. Importantly, however, the decision does not relate to the health of that individual but to his or her propensity to inflict avoidable harm on others. In some circumstances, the degree of harm possible and either proof of intent to harm or flagrant disregard for possible harm have resulted in legal sanction. In England and Wales, reckless sexual transmission of an infection (in the absence of consent to such a risk) may amount to grievous bodily harm under the Offences Against the Person Act 186113 (see 14). After many years of successful prosecutions relating to reckless transmission of HIV, 2011 saw the first successful criminal prosecution in the UK concerning transmission of Herpes genitalis (in contrast, there have been multiple law suits in the USA dating back to 1987).15 The conviction drew a great deal of criticism from experts in sexual health and patient action groups.16 ,17 Given that the defendant pleaded guilty to grievous bodily harm, legal arguments in his defence were not heard. These surely would have included difficulties in establishing actual transmission from the defendant and in demonstrating the necessary ‘recklessness’ of mind as well as squaring the ubiquity of the infection (and the probable triviality in most of those affected) with the severity of a custodial sentence. Following the guilty plea, the defendant (Golding) was sentenced to 14 months in prison but released pending appeal. The appeal (as at June 2013) has yet to be heard. It has been suggested that the threat of criminal liability does not seem an appropriate mechanism for dealing with consensual sexual activity in adults. A major risk is clearly that this would discourage people from seeking sexually transmitted infection (STI) screening, and instead foster an atmosphere of secrecy and denial, encouraging poorly informed sexual activity and generating a profoundly negative public health impact. Yet, if we are to avoid the involvement of the courts and rely on moral norms of sexual behaviour to guide our actions as a society, how are these norms established and how are they conveyed? One means of conveying such norms would be for doctors to give advice on when it is acceptable to be sexually active and with which safeguards. But what should the content of this advice be?
How to behave with herpes?
The first issue might be regarded as simply providing medical information on when one is infectious and when one is not. It is the application of the answer which involves a moral decision about preventing harm to others. Avoiding sexual activity from the onset of symptoms to the healing of the last lesion reduces spread of infection. Yet, we also know that carriers shed virus in the absence of a rash for around the same number of days each year as they have a rash and that most transmissions occur when there are no lesions evident.18–20 Crucially, we have no clue as to which are the infectious days. In other words, the blistering rash, which is a badge of infectivity, can only be used to avoid half the infectious days in any set period of time. Thus, the straightforward advice to avoid sex when you are infectious transforms into a risk ratio. If the number of days on which you have a herpetic rash in any 1 year is x then the proportion of the year during which you are infectious is 2x/365. Assuming you avoid sex on the days that you have a rash, the chance of you shedding virus on any particular other day will be x/(365−x). This information is just that—information. It seems relatively uncontentious that doctors should provide at least this level of insight for three reasons. The first is that patients regularly ask for it in an attempt to understand the implications of their infection. The second is that courts of law may expect that medical attendants will provide sufficient information to their patients on risks of transmission as part of their duty of care and, as a separate issue, courts can only assess ‘recklessness’ on the basis of proof that the defendant received and understood information on the size of the risk of passing on their infection to a sexual partner. The third is that doctors have a public health responsibility not simply to their patient but to prevent or mitigate harm to the wider population.
But information on frequency of viral shedding does not cover the extent of viral shedding. Lesions appear when shedding crosses a threshold level, but below this level asymptomatics may shed as many viral copies as symptomatics.18 Neither does the combination of the two provide direction on thresholds of acceptability. The value that x takes in the equation above may change our perception of whether the risks of having sex are small (some individuals may shed virus for only a day or two/year) or so large as to suggest that any unprotected sexual activity exhibits a reckless disregard of the risks involved (on average, within the first year of infection, viral shedding occurs a third of the time).19 Clearly some take greater risks in life than others, but generally these are risks to one's own health or welfare, not to that of others. Some may feel that it is always wrong to play roulette with someone else's health. They might say that the only certain way of avoiding passing on infection is sexual abstinence. Yet, this seems a high a price to pay.
Several levels of risk-taking then might be identified.
Sexual abstinence: No risk of HSV transmission
Sexual activity with HSV positive partners only (eg, through herpes dating websites): Perception of no risk but maybe increased risk of acquiring alternative HSV type
Full disclosure associated with:
Checking HSV antibody status of partner: HSV2 positive, then carriers with no risk of acquiring HSV2, but susceptible to HSV1; HSV1 positive then vice versa;20 HSV1 positive woman, HSV2 risk reduced by <20%21 and more likely asymptomatic
No disclosure, use of precautions as above
Only the least morally athletic will fall foul of the bar set at level five. A model of this is set out in the Crown Prosecution Service's guidelines on the circumstances in which it would prosecute on the basis of reckless transmission of an STI.31 Under this guidance, the person must have foreseen that the other person might contract the infection via sexual activity but nevertheless has recklessly proceeded to run that risk. Relevant to an assessment of recklessness is the level of risk of transmission and this can vary based on the number of exposures and the nature and status of the infection. Only where it can be shown that the defendants knew how infectious they were and also knew that any safeguards employed were inadequate to the risk will it be likely that the prosecution would be able to prove recklessness. This does not amount to intentional transmission of the infection, but to a substantial disregard concerning whether or not the infection would be transmitted. Successful prosecution requires not only that infection may have been passed in this way, but that it actually was passed in this way, beyond any reasonable doubt (ie, the criminal, not the civil, standard of proof).
Can we construct a case for an agreed intermediate level of moral responsibility (around level three) which does not demand the self-sacrifice necessary to cross the high bar (level one), but aims higher than the minimal level of moral concern required to hop over the low bar (level five)?
Systems of moral philosophy can be formulated in many ways. Models of morality are commonly broken down into (1) rule-based systems and (2) outcome-based systems. The most familiar systems based on rules would be the ten commandments of the Judaeo-Christian tradition or the moral injunctions found within the text of the Koran for Moslems. Immanuel Kant constructed a secular system built upon the basic premise, ‘Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.’32 The similar proposition that we should treat others as we would wish to be treated ourselves has been promoted under the guise of the ‘golden rule’ and claimed in one form or another by most religious traditions since the age of antiquity. If, for example, we would not wish to lose our own life, then we must have a rule which prohibits killing. Yet, many have suggested that rules are arbitrary and situations often too complex to allow of anything other than the most general and watered-down of injunctions. Thus, even the strict injunction ‘Thou shalt not kill…’ requires multiple caveats in most societies…. other than in a just war, in self-defence, as an ultimate sanction within a judicial system, in utero prior to life independent of the mother, as ‘mercy’ killing and so on. What would be the equivalent injunction with respect to herpes? Thou shalt not engage in sexual activity while thou hath a blistering rash? This invites a series of retorts. What if the partner is already immune? How about using a condom? Where does asymptomatic shedding fit in? How can one even be sure it is herpes? Any attempt to provide more specific response to these questions may then generate further protest in terms of the provenance of this authority—‘Says who?’
Critics claim that rule-based systems are too inflexible and insufficiently sensitive to actual outcomes in the real world. Thus, the other major conception of morality is based on outcomes rather than rules—so-called ‘consequentialism’. The most prominent of exponents has been John Stuart Mill in the specific application that has become known as ‘utilitarianism’.33 By this conception, the moral appropriateness of any action is defined by its outcome, either in terms of its utility or the net happiness of those affected by the action. His teacher and mentor, Jeremy Bentham, went as far as trying to express this mathematically in what he termed the ‘felicific calculus’. He proposed that the pleasures or pains that derived from particular actions could be quantified by identifying seven criteria—(1) Intensity, (2) Duration, (3) Certainty, (4) Propinquity (nearness), (5) Fecundity, (6) Purity and (7) extent.34 Many have baulked at the idea that moral judgments can be adequately encapsulated in an equation. Yet, we have already encountered an equation relevant to the transmission of genital herpes that might lay claim to moral relevance.
A bad outcome with respect to the sexual activity of a man or woman with genital herpes would occur should they have multiple sexual partners who all develop herpes themselves (Bentham's ‘fecundity’ measure) and suffer severe frequent painful recurrences (intensity and duration). This would characterise sexual promiscuity in these circumstances as morally culpable. An even worse outcome would ensue if these sexual partners themselves had multiple partners and spread the infection far and wide (the ‘extent’ measure). The necessary geometric progression of summative harm in a growing population caused by an STI, which does not impact on fertility, would seem to make the act of passing the initial infection with the newly mutated virus more and more morally culpable. As a judgment, this may seem a little harsh and may not pass the commonsense test.
Taking a slight step backwards, and looking at risk within a single sexual network, a mathematical model involving a threshold concept could be constructed by suggesting that once a carrier drops below a transmission risk no greater than that posed by a random sexual encounter with an unscreened casual partner, one might no longer need to declare one's HSV status. In the UK, HSV2 may be carried by 10%–15% of the population who initially shed virus 30% of the time,17 that is, risk of exposure with casual unscreened partner 3%–5% on each occasion. Thus, an identified carrier, once shedding virus less than 3%–5% of the time, would statistically pose a lower risk of viral transfer than a random casual partner. Unfortunately, best evidence suggests that HSV2 carriers are still likely to be shedding virus 10% of the time even after 10 years.18 ,19 A sporadic shedder in a high prevalence area would dip below the probability curve but the maths is contentious, and relying on others to pose a greater risk than oneself seems less than morally robust.
A new view
Deontology (rule-based morality) and consequentialism have been hugely influential in the development and analysis of moral philosophy. Both have their supporters and detractors. The limited critique above is intended only to show that their application to the issue of ‘how to behave with herpes’ presents clear problems. It may be helpful to explore a different approach which does not rely on rules (as a starting point) or outcomes (in retrospect). One such alternative mechanism for systematising questions of morality is the social contract model. In 1971, John Rawls published his Theory of Justice35 which proposed a system of distributive justice within society based on a set of rules as they might be established by a community as it were in utero, unaware of their future sex, race, social status, wealth, intellectual ability and so on. In this Original Position they would be covered by a ‘veil of ignorance’ but design, nevertheless, a system of wealth distribution to which they would all be content to subscribe. Rational self-interest would ensure that no one would want to risk becoming a member of an underclass with fewer rights than others. Through this mechanism, Rawls proposes a fundamental principle establishing equality of assignment of rights and duties for all. A secondary principle emerges which rewards endeavour and allows differences in wealth to emerge which are tolerated by the society as a whole as long as this works to the advantage of all in society, even the least able.
Rawls intended the Original Position to be a thought exercise, an intellectual abstraction given that we cannot be effectively blinded to our race, gender and social status.36 Interestingly, however, if we apply the same construct to the more limited area of sexual activity, being blind to our HSV status is possible—indeed probable.9 It could be feasible to construct a system of ‘rules’ of sexual engagement for those genuinely uncertain of whether they carry the HSV virus or not, but to which they would be prepared to subscribe either way. As a thought exercise, the questions and answers might be imagined thus. From your original position, beneath your veil of ignorance, would you wish to minimise opportunities for viral transmission? Yes, certainly. Would you wish to effectively extinguish all opportunity for viral transmission by preventing viral carriers from having sexual intercourse, or ensuring that they only do so with sero-concordant partners? No, certainly not. Why not? Because I might turn out to be a viral carrier and this would either mean ‘no sex, ever’, or at best reduce my potential pool of sexual/lifetime partners by between 50% and almost 90% (depending on local HSV prevalence). Additionally, the virus would not be extinguished as it would continue to be passed orally through social kissing.
We are, at least in part, sexual beings and might regard sexual activity as a ‘good’ within the goods of life. At the same time we share a mutual interest in not being harmed by others. Thus, the principle which might emerge from such an exercise, analogous to Rawls’ fundamental principle of social justice, could be framed as ‘an equality of sexual opportunity allied with a responsibility to avail of appropriate safeguards’. Might it give us specific answers to specific questions? Arguably, yes. From either side of the fence, it would seem inappropriate to engage in sexual activity during a symptomatic episode, and use of condoms at all other times (in non-committed relationships) might receive general support. Exacerbation of vulnerability during pregnancy may make the same safeguards even more important at that time.
At what point does disclosure become mandatory? Respect for autonomy and informed consent have a lofty role in modern medical ethics, but this Rawlsian perspective may change that. The bold assertion from one side of the Original Position that ‘I would want to know...’ might become, from the other side, a more meekly expressed ‘How soon would I have to tell...’ Remember that this is not a transaction between a powerful physician and a vulnerable patient requiring some rebalancing of power, but a tentative conversation between two equal but differently vulnerable individuals. It seems likely that our protagonist from his/her original position, provided appropriate safeguards were taken, would not insist on disclosure from the outset. What they might insist upon would be disclosure at the point that such protection failed or was wilfully omitted.
Rawls for real
In this form, the exercise is conjecture. However, given that the peculiarities of the virus allow for the probability of a large number of people who are genuinely in the original position of having no clue as to their HSV status, the thought experiment could transform into an actual exercise in social contract. Rawls himself described a mechanism by which real societies could construct real rules based on the deliberations of specific groups charged with this responsibility. Groups could be formed within communities around which sexual networks might coalesce (such as schools, colleges, larger workplaces). The veil of ignorance should shield from knowing gender, race, sexual orientation, physical attributes, abilities/disabilities, whether sexually active or otherwise, as well as one's HSV status. Those who know their status, as a result of recent testing, could be included on the basis that everyone's views count and that societies reach durable consensus through the sum of the self-interest of its stake-holders. But this was not Rawls’ idea. Rational actors, in a state of knowledge, might design a system that benefited the majority, as the majority would vote for propositions in their own self-interest. Rational actors, in a state of ignorance, however would have a more equitable concern for minority interests given their awareness that they might find themselves within such a minority. Hence, inequalities would not be tolerated on the basis that they served the interests of the majority but only when they benefit everyone in the community. For this reason, those with a firm conviction that they do, or do not, have the virus (even though they may be wrong) should be excluded from such a Rawls group, so that all within the group are as blind to their HSV status as possible. (In most communities, chances of carrying the HSV1 virus are indeed finely balanced at around the 50% mark.) The group would then be invited to come up with a set of ‘rules of engagement’ concerning sexual activity in a range of scenarios in which herpes may be an issue, covering areas such as disclosure, condom use, testing and prophylaxis. Rational self-interest would then guide them to agree guidelines which would appear just, and to which they would be content to adhere, irrespective of whether they subsequently discovered themselves to carry the virus or not. Note also, that although these considerations have materialised into quite specific rules, the provenance of these rules is nevertheless explicit and defensible.
In a sense, this might naturally transcend the issue of ‘how to behave with herpes’ and become more a ‘user's guide’ to how to have sex in general. In 2012, Burris and Weait37 proposed a similar Rawlsian exercise with respect to HIV in attempting to address the wisdom of criminalising sexual transmission of that infection. They proposed a thought experiment in which people are ignorant of ‘gender, sexual preference, power, wealth, HIV status, psychological and emotional capacities’ with a goal ‘to construct a set of rules of conduct that create a world in which the burdens and benefits of sex in the context of HIV are fairly distributed, allowing inequalities only when they benefit everyone in the community.’ One of the most interesting products of this analysis is the way in which it implicitly removes the moral responsibility for HIV transmission from being entirely that of the individual with HIV to that of the society as a whole through the sexual norms it establishes. With respect to the question as to whether sexual behaviours should be governed by diagnostic labels it may be noted that one of the ‘rules’ established by a Rawls group might be a requirement that people would discover their HSV status, a moral expectation that they should do so or a respected freedom to opt out of such awareness. However, if most people decide they would rather not know and a state of ignorance were generally favoured above awareness then the system may be seen to be operating too punitively against those aware of viral carriage, promoting viral transfer and effectively working against the interests of the community. The community, incidentally, could be of any size and there is no reason why communities around the globe, or a global community, should not support essentially the same set of moral norms with respect to sexual activity with herpes. While there is a tension between moral commonality and relativism,38 arguably the moral choices that we tend to make are largely consistent across societies (not necessarily in terms of sexual behaviours but in terms of more fundamental issues such as our attitude to causing harm to others) and those collective choices will tend to gravitate to areas of common ground.
The charge may be made that this is no more than a paternalistic moral prescription under the guise of health advice, jogging the legitimate area of concern of medical ethics from the conduct of health professionals to that of their patients, and further adding to the burdens of those with the virus. It is none of these things. Rather, it is a consensual person-centred exercise in social contract legitimised by patients seeking advice on norms of reciprocal sexual behaviours and by our appropriate professional concerns for public health. With these aims in mind, we might make a modest proposal for a collaborative exercise in clarifying the rights and responsibilities of those with and without HSV, either within the sexual marketplace or within enduring relationships. These rights and responsibilities must be equally acceptable to those both with and without the virus from beneath their veil of ignorance. Such an exercise in constructing a social contract concerned with ‘How to behave with Herpes’ and based on Rawlsian principles could be conducted by establishing Rawls groups in different communities anywhere in the world. The success of any such venture might be judged first by the extent to which those who carry the virus find any guidance produced helpful in transactions with actual or potential sexual partners, and second by the extent to which others feel its advice adequately protective and appropriate. Even without this additional exercise, the Rawlsian perspective arguably provides a better basis to advice on sexual activity with respect to STI risk than either more traditional deontological or consequentialist approaches. It may be noted that the arguments herein may be applied to other STIs including HIV but that the discussion has been restricted to the HSV in order not to further complicate the issues.
One of the merits of Rawls’ thesis is that it derives moral statements from the practical bedrock of rational self-interest. In a world in which people expect to be respected as independent moral agents, but are suspicious of the content of paternalistic moral codes, a communitarian approach may provide an acceptable framework to guide the actions of many. It seems plausible that a moral code that does not moralise but appeals directly to our ability to place ourselves in others’ shoes will find some general sympathy, especially should we discover those shoes to be, in fact, our own.
I would like to thank Pat Munday for comments on an early draft and to the editors for helpful suggestions and advice.
Correction notice A sentence from the first page of this article has been modified for further clarification.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.